Fighting for Fair Use and Safer Harbors: 2016 in Review

In 2016 we witnessed the latest stretch in an ongoing struggle over the shape of copyright law and who it serves - between a law that respects and promotes innovation and free expression, and one that only serves the interests of large copyright holders. This year we welcomed a run of victories for fair use and Internet safe harbors, while looking toward some important battles yet to come.

The fight for fair use heads to the Supreme Court in Lenz v. Universal

After 9 years of battling it out in the lower courts, Stephanie Lenz, represented by EFF, has taken her fight for Internet fair use to the United States Supreme Court. In August, Lenz filed a petition asking the Court to overturn a part of the 2015 ruling from the United States Court of Appeals for the Ninth Circuit that undermines the Digital Millennium Copyright Act’s safeguards for users.

In 2007, Lenz first filed the “Dancing Baby” lawsuit after her YouTube video was taken down as the result of a bogus copyright infringement notice from Universal Music. Lenz’s video was a 29 second recording of her toddler dancing in her kitchen while Prince’s “Let’s Go Crazy” played, barely audible, in the background. Lenz argued that Universal’s takedown notice was precisely the kind of abuse that the DMCA’s safeguards are designed to prevent.

In 2015, the Ninth Circuit issued an important decision holding that copyright holders must consider whether alleged infringement is a fair use before sending a takedown notice. But the court also applied an entirely subjective standard that, we fear, will be read to allow rights holders to target content “based on nothing more than an unreasonable hunch, or subjective criteria they simply made up[.]” We don’t think this is what Congress intended, and Lenz has asked the Supreme Court to protect users’ fair use rights and overrule this part of the decision.

In April, the Supreme Court rejected the Authors’ Guild’s request to review the Second Circuit’s landmark fair use ruling in the Google Books litigation. By declining to hear the appeal, the Supreme Court left in place a significant victory for fair use and brought an end to over a decade of litigation.

The Second Circuit found the Google Books project to be a highly transformative fair use of the authors’ copyrighted works, providing the public information to which they would not otherwise have access. The court’s opinion also affirmed that copyright law’s main purpose is to serve the public by facilitating access to knowledge and creative works, stating “[t]he ultimate goal of copyright is to expand public knowledge and understanding. . . Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.”

In May, a federal jury unanimously agreed that Google’s use of Java APIs in the Android operating system was a fair use. Following on the heels of the Court of Appeals for the Federal Circuit’s disappointing and dangerous decision that APIs are copyrightable, the fair use verdict ensures some degree of protection against copyright creep for software innovation and interoperability. But, as we’ve said before, it would be far better if the Federal Circuit had recognized that APIs are a system or method of operation and therefore not eligible for copyright protection.

Oracle is appealing the decision to the Federal Circuit, and we’re hoping that, this time, the court makes the right call and upholds the jury’s verdict.

Appeals court affirms Vimeo has no obligation to monitor or investigate user uploads

This June, responding to one of several recent attacks on the DMCA’s safe harbors for Internet intermediaries, the Second Circuit ruled that online video site Vimeo had no obligation to investigate or monitor its users’ uploads for copyright infringement.

Recording company Capitol Records sued Vimeo back in 2014, arguing that the DMCA’s safe harbors did not cover pre-1972 sound recordings (which aren’t covered under federal copyright law) and that even if the safe harbors did apply, Vimeo should lose its protection for failing to investigate potentially infringing uploads. The Second Circuit roundly rejected Capitol Records’ arguments, finding that the safe harbors did apply, and that Vimeo had no duty to monitor user uploads for infringement. In so doing, the Second Circuit handed a significant win to users and online platforms in the ongoing battle over the scope of the safe harbors.

The Ninth Circuit’s holding in VMG Salsoul v. Ciccone that copyright law’s “de minimis” doctrine does in fact apply to music sampling was a long overdue departure from the Sixth Circuit’s 2005 Bridgeport Music decision. In Bridgeport, the Sixth Circuit foreclosed application of the doctrine to sound recordings, making music sampling a risky and expensive enterprise. This year the Ninth Circuit gave music sampling back some much needed breathing room in holding that Madonna’s use of a .23 second sample of a Salsoul Orchestra song was “de minimis” and therefore not infringing.

But 2016 wasn’t all victories for users. In BMG v. Cox Communications, for example, a judge in the Eastern District of Virginia held that an Internet service provider (ISP) might have to cut off someone’s Internet access on the basis of mere allegations of infringement, or else lose the legal protections that ensure ISPs can’t be held liable for infringement by their customers. EFF, along with Public Knowledge and the Center for Democracy and Technology, filed a brief in support of Cox’s ongoing appeal, asking the Fourth Circuit to consider the importance of Internet access in daily life in determining when copyright law requires an ISP to cut off someone’s connection.

We’re glad to see that some courts are pushing back against copyright holders’ demands to shape the law to serve their own interests. In 2017 we’ll continue the fight to ensure that copyright law works for all of us.

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